Morningstar Marinas/Eaton Ferry, LLC v. Warren Cnty.

NO. COA13-458
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
MORNINGSTAR MARINAS/EATON
FERRY, LLC,
Petitioner
v. Warren County
No. 12 CVS 180
WARREN COUNTY, NORTH CAROLINA
and KEN KRULIK, WARREN COUNTY
PLANNING AND ZONING ADMINISTRATOR,
IN HIS OFFICIAL CAPACITY,
Respondents.
Appeal by respondents from order entered 13 September 2012
by Judge Robert H. Hobgood in Warren County Superior Court.
Heard in the Court of Appeals 6 November 2013.
Robinson, Bradshaw & Hinson, P.A., by John H. Carmichael,
for petitioner-appellee.
Turrentine Law Firm, PLLC, by Karlene S. Turrentine, for
respondents-appellants.
DAVIS, Judge.
Warren County and Ken Krulik (“Mr. Krulik”), in his
official capacity as the Warren County Planning and Zoning
Administrator (collectively “Respondents”), appeal from the
trial court’s order issuing a writ of mandamus in favor of
Morningstar Marinas/Eaton Ferry, LLC (“Morningstar”) in
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connection with a zoning dispute. After careful review, we
affirm the trial court’s order.
Factual Background
The facts relevant to this appeal are as follows:
Morningstar operates a full-service marina on a 5.03 acre parcel
of land (“the Morningstar Property”) located at 1835 Eaton Ferry
Road in Littleton, North Carolina. The Morningstar Property is
zoned commercial in the Lakeside Business District under the
Warren County Zoning Ordinance (“the Ordinance”). Its
commercial marina offers wet slips and dry storage for boats and
a fuel dock. The Morningstar Property is located off of a small
cove of Lake Gaston and is approximately 145 feet across the
cove from land owned by East Oaks, LLC (“East Oaks”).
Approximately 8.5 acres of the East Oaks property is zoned
residential (“the Residential Property”) under the Ordinance.
Adjacent to the Residential Property is a 1.91 acre parcel of
land owned by East Oaks and zoned commercial (“the Commercial
Property”). The Commercial Property is improved with a boat
storage building from which East Oaks operates a dry storage
facility.
East Oaks filed a petition for a conditional use permit
seeking to build 36 townhouses on the Residential Property. In
its petition, East Oaks included a site plan for the proposed
use showing the townhouses, roads, and a drive (“the Drive”)
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that connects the Commercial Property and the Residential
Property. The record indicates that the Drive was to be used
for the purpose of transporting boats from the dry storage
facility located on the Commercial Property to the boat launch
area located on the Residential Property.
Before the Warren County Board of Adjustment (“BOA”) ruled
on East Oaks’ petition for a conditional use permit, Mr. Krulik
reviewed the Ordinance and issued a formal determination on 21
April 2011 (“the 21 April Determination”), finding that
townhouses were a permitted use in a residential district as a
single-family dwelling. As such, East Oaks withdrew its
application for the conditional use permit and secured a
standard zoning permit to begin construction.
Morningstar appealed the 21 April Determination to the BOA,
asserting that neither the townhouses nor the Drive portions of
East Oaks’ site plan were permitted under the Ordinance.
Because the 21 April Determination did not expressly address the
Drive portion of East Oaks’ site plan, on 12 May 2011,
Morningstar requested that Mr. Krulik issue a formal
determination as to whether East Oaks’ proposed use of the Drive
would constitute a commercial use of the Residential Property in
violation of the Ordinance. In an email dated 10 June 2011, Mr.
Krulik responded, “I am not going to make a determination on
this . . . . [because] it is not a relevant issue to my
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determination on townhouses as a permitted use or issuing the
zoning permit.”
On 15 August 2011, the BOA heard Morningstar’s appeal and
voted unanimously to reverse the 21 April Determination and to
revoke East Oaks’ zoning permit. On 12 September 2011, East
Oaks filed a petition for writ of certiorari in Warren County
Superior Court seeking judicial review of the BOA’s decision
reversing the 21 April Determination. On 14 October 2011, the
Honorable Robert H. Hobgood entered a consent order whereby East
Oaks and Warren County agreed to reinstate East Oaks’ zoning
permit and adopt Mr. Krulik’s interpretation of the Ordinance so
as to allow East Oaks to develop the property pursuant to its
site plan. Morningstar was not a party to the consent order,
and the trial court concluded as a matter of law that
“Morningstar is not a ‘person aggrieved’ pursuant to N.C. Gen.
Stat. § 153A-345(b)” and that the “Warren County Board of
Adjustment had no jurisdiction or authority to hear the appeal
of Morningstar.”
One week earlier, on 7 October 2011, Morningstar filed its
initial petition for writ of mandamus to compel Mr. Krulik to
issue the requested formal determination regarding the Drive.
In Respondents’ answer, they denied Morningstar’s right to
petition for writ of mandamus but also attached a formal
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determination from Mr. Krulik dated 16 November 2011 (“the 16
November Determination”), which stated, in pertinent part, that
[w]hile I did not make a specific
determination as to whether the use of the
concrete drive/easement constitutes a
commercial use of the East Oaks property in
violation of the Ordinance, my issuance of
the East Oaks zoning permit . . .
necessarily required that I determine the
submitted use of the entire property covered
by the permit is not restricted by the
Warren County Zoning Ordinance.
The drive is shown as a “20’ wide
private access easement” on East Oaks’
development plans. Warren County’s
Ordinance does not specifically regulate
easements — whether or not they cross
varying zoning jurisdictions. . . . [T]o my
knowledge, there has been no attempt by
Warren County to regulate such easements
through its zoning regulations.
After Mr. Krulik issued the 16 November Determination,
Morningstar dismissed its petition for writ of mandamus without
prejudice.
Thereafter, Morningstar noticed its appeal of the 16
November Determination (“the Drive Appeal”). By letter dated 17
January 2012, Warren County’s attorney advised Morningstar that
the Drive Appeal would not be placed on the BOA’s agenda. On 14
May 2012, Morningstar filed another petition for writ of
mandamus in Warren County Superior Court, seeking — this time —
to compel Respondents to place the Drive Appeal on the BOA’s
agenda for a hearing on the merits. On 13 September 2012, Judge
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Hobgood granted Morningstar’s petition and issued a writ of
mandamus ordering Respondents to place the appeal on the BOA’s
agenda. Respondents filed a timely notice of appeal to this
Court.
Analysis
As an initial matter, Respondents argue that the 16
November Determination was not a “new” determination from which
Morningstar could appeal to the BOA because it merely echoed Mr.
Krulik’s 21 April Determination. We disagree. The 21 April
Determination did not explicitly address the use of the Drive.
Moreover, in its first petition for writ of mandamus,
Morningstar alleged: “As of the date of this Petition, Mr.
Krulik has not issued the requested formal determination
[regarding the Drive].” Respondents admitted this allegation in
their answer and then — referencing the 16 November
Determination — provided that “such formal determination is
hereto attached.” Thus, we consider Mr. Krulik’s 16 November
letter to be a formal determination from which Morningstar may
appeal.
We now turn our attention to whether the criteria for the
issuance of a writ of mandamus were satisfied. “A writ of
mandamus is an extraordinary court order to a board,
corporation, inferior court, officer or person commanding the
performance of a specified official duty imposed by law.”
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Graham Cty. Bd. of Elections v. Graham Cty. Bd. of Comm’rs, 212
N.C. App. 313, 322, 712 S.E.2d 372, 379 (2011) (citation and
quotation marks omitted). A writ of mandamus is the proper
remedy when (1) the party seeking relief has “a clear legal
right to the act requested;” (2) the respondent has “a legal
duty to perform the act requested;” (3) the act at issue is
“ministerial in nature and [does] not involve the exercise of
discretion;” (4) the respondent has failed to perform the act
requested and the time for performance has expired; and (5)
there is no legally adequate alternative remedy. In re T.H.T.,
362 N.C. 446, 453-54, 665 S.E.2d 54, 59 (2008). “A court cannot
refuse a petition for writ of mandamus when it is sought to
enforce a clearly-established legal right.” Id. at 453, 665
S.E.2d at 59.
Here, Respondents’ primary contention is that mandamus was
not appropriate because Morningstar lacked standing to appeal
Mr. Krulik’s 16 November Determination and, as such, did not
have a “clear legal right” to have its appeal placed on the
BOA’s agenda. However, because we believe that Mr. Krulik had a
statutory duty to transmit Morningstar’s appeal to the BOA and
that the existence — or nonexistence — of standing is a legal
determination that must be made by the BOA, we affirm the trial
court’s order issuing a writ of mandamus compelling Respondents
to place the appeal on the BOA’s agenda.
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At all times relevant to this action, N.C. Gen. Stat. §
153A-3451 provided, in relevant part, as follows:
(b) A zoning ordinance . . . adopted
pursuant to the authority granted in this
Part shall provide that the board of
adjustment shall hear and decide appeals
from and review any order, requirement,
decision, or determination made by an
administrative official charged with the
enforcement of that ordinance. Any person
aggrieved or any officer, department, board,
or bureau of the county may take an appeal.
Appeals shall be taken within times
prescribed by the board of adjustment by
general rule, by filing with the officer
from whom the appeal is taken and with the
board of adjustment a notice of appeal,
specifying the grounds thereof. The officer
from whom the appeal is taken shall
forthwith transmit to the board all the
papers constituting the record upon which
action appealed from was taken.
N.C. Gen. Stat. § 153A-345(b) (emphasis added). The purpose of
N.C. Gen. Stat. § 153A-345 is “to provide a right of review, and
statutes providing for review of administrative decisions should
be liberally construed to preserve and effectuate that right.”
Mize v. Cty. of Mecklenburg, 80 N.C. App. 279, 283, 341 S.E.2d
767, 769 (1986).
Neither N.C. Gen. Stat. § 153A-345 nor any other provision
of North Carolina law confers upon a zoning administrator the
power to make a legal decision as to whether a party seeking to
1
N.C. Gen. Stat. § 153A-345 was in effect during the time period
relevant to the present action but has since been repealed.
N.C. Gen. Stat. § 160A-388 now governs appeals to county boards
of adjustment.
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appeal to the BOA from a zoning decision is a “person aggrieved”
for standing purposes. North Carolina law does, however,
mandate that the zoning administrator transmit the record of an
appeal to the BOA if the appeal is taken within the prescribed
time period. Pursuant to N.C. Gen. Stat. § 153A-345(b), a
zoning administrator has no discretion regarding whether to
perform his duty of transmitting the record to the BOA once the
appeal has been noticed. Instead, as quoted above, the statute
expressly states that the zoning administrator from whom the
appeal is being taken “shall forthwith transmit to the board all
the papers constituting the record upon which action appealed
from was taken.” N.C. Gen. Stat. § 153A-345(b) (emphasis
added). The Warren County Zoning Ordinance — in accordance with
§ 153A-345(b) — also specifically provides that “[a]ppeals from
the enforcement and interpretation of this ordinance . . . shall
be filed with the Zoning Administrator, who shall transmit all
such records to the Board of Adjustment.” Warren County, N.C.,
Zoning Ordinance § IX-4 (emphasis added).
Our appellate courts have consistently held that the use of
the word “shall” in a statute indicates what actions are
required or mandatory. See Multiple Claimants v. N.C. Dep’t of
Health & Human Servs., 361 N.C. 372, 378, 646 S.E.2d 356, 360
(2007) (“It is well established that the word ‘shall’ is
generally imperative or mandatory.” (citations and quotation
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marks omitted)); Internet E., Inc. v. Duro Communications, Inc.,
146 N.C. App. 401, 405-06, 553 S.E.2d 84, 87 (2001) (“The word
‘shall’ is defined as ‘must’ or ‘used in laws, regulations, or
directives to express what is mandatory.’” (citation omitted)).
As such, we conclude that the act of placing Morningstar’s
appeal on the BOA agenda is ministerial in nature and does not
involve any discretion on the part of the zoning administrator.
We also hold that Morningstar has a legal right to have its
appeal transmitted to the BOA and placed on the agenda.
Morningstar appealed the 16 November Determination on 14
December 2011. In accordance with the provisions of the Warren
County Zoning Ordinance, Morningstar filed its appeal with Mr.
Krulik, the officer from whom the appeal was taken, and included
a $150.00 filing fee for the appeal. See Warren County, N.C.,
Zoning Ordinance § IX-4 (“Appeals from the enforcement and
interpretation of this ordinance . . . shall be filed with the
Zoning Administrator . . . .”); id. at § IX-2 (listing $150.00
as fee for appeals to the BOA). Because Morningstar complied
with the requirements for taking an appeal, it had a right to
have its appeal placed on the BOA’s agenda. See id. at § IX-3
(“The Board of Adjustment shall have the following powers and
duties . . . [t]o hear and decide any appeal from and review any
order, requirement, decision, or determination made by the
Zoning Administrator.”); id. at § IX-4 (“The Board of Adjustment
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shall fix a reasonable time, not to exceed 30 days, for the
hearing of the appeal . . . .”).
Mr. Krulik, as the zoning officer from whom the appeal was
taken, therefore had a statutory duty to transmit the appeal to
the BOA. This duty was mandatory, as indicated by the use of
the word “shall,” and did not involve the exercise of
discretion. Because Mr. Krulik failed to comply with the
statutory mandate and instead made clear his unwillingness to do
so, mandamus was Morningstar’s only available remedy.
Morningstar’s ability to appeal to the BOA was foreclosed by Mr.
Krulik’s refusal to place the appeal on the BOA’s agenda.
Moreover, Morningstar could not appeal the substance of the
zoning administrator’s decision directly to the superior court
because only BOA decisions are subject to judicial review. See
N.C. Gen. Stat. § 153A-345(e2) (“Each decision of the board is
subject to review by the superior court by proceedings in the
nature of certiorari.” (emphasis added)).
The trial court’s order compelling Respondents to place
Morningstar’s appeal on the BOA agenda does not allow
Morningstar to circumvent the requirement of standing. To the
contrary, its order fully recognizes that in accordance with §
153A-345, Morningstar must establish that it is an aggrieved
party in order to have the merits of its appeal heard by the
BOA. We believe the order correctly provides that the
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determination of whether Morningstar has standing to appeal must
be made by the BOA rather than by Mr. Krulik. We express no
opinion as to whether Morningstar does or does not possess
standing to appeal because that issue is not before us.
Smith v. Forsyth Cty. Bd. of Adjust., 186 N.C. App. 651,
652 S.E.2d 355 (2007), the case the dissent relies upon in
concluding that mandamus was not appropriate, did not involve a
petition for a writ of mandamus or in any way address the
authority of a zoning administrator to make a determination as
to standing. Rather, the issue in Smith was whether the
superior court correctly dismissed the petitioner’s appeal from
a BOA decision for lack of standing. Id. at 652, 652 S.E.2d at
357. This Court concluded that the petitioner’s application to
the BOA appealing the zoning officer’s decision had not alleged
special damages as required in order for the petitioner to
qualify as a “person aggrieved.” Id. at 654-55, 652 S.E.2d at
358.
We do not read Smith as suggesting that a zoning officer
would have the authority to refuse to transmit an appeal to the
BOA based simply on his own belief that the appellant lacked
standing. We cannot agree with the dissent that our holding in
Smith somehow confers a gatekeeper role onto zoning officers
given that such a role is nowhere conferred by statute or, for
that matter, identified in our decision in that case. Rather,
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we believe that Smith is consistent with the notion that it is
the BOA that has the duty of determining whether a party has
made the requisite showing of standing such that the merits of
the appeal may be reached.
Standing is a question of law. Cook v. Union Cty. Zoning
Bd. of Adjust., 185 N.C. App. 582, 588, 649 S.E.2d 458, 464
(2007). A determination of standing involves a determination of
“whether a particular litigant is a proper party to assert a
legal position.” Id. As such, we are unable to conclude that a
zoning officer is vested with the authority to make such legal
determinations regarding standing, particularly where the
result, as here, would be to insulate that very same officer’s
decision from review.
Respondents also contend that their motion to dismiss the
petition for writ of mandamus was improperly denied because (1)
Morningstar failed to join a necessary party (East Oaks); and
(2) Morningstar’s petition for mandamus was merely an attempt to
bypass the fact that the time period for appealing the 21 April
Determination or the consent order reinstating that
determination had already passed. We are not persuaded by
either of these arguments.
“A necessary party is one whose presence is required for a
complete determination of the claim, and is one whose interest
is such that no decree can be rendered without affecting the
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party.” McCraw v. Aux, 205 N.C. App. 717, 719, 696 S.E.2d 739,
740, disc. review denied, 364 N.C. 617, 705 S.E.2d 362 (2010).
As we have explained above, the present action commenced when
Morningstar attempted to appeal the 16 November Determination
and Mr. Krulik refused to place the appeal on the BOA’s agenda.
Morningstar then sought a writ of mandamus directing Respondents
to perform the ministerial, nondiscretionary task of placing the
appeal on the BOA’s agenda for a hearing. The order issuing
mandamus in no way addressed the merits of any substantive
issues concerning (1) whether Morningstar was an aggrieved party
with standing to appeal; or (2) whether East Oaks’ use of the
Drive is permitted under the Warren County Zoning Ordinance.2
Rather, as Morningstar notes, the present action is “a purely
procedural issue between Morningstar and the Respondents.”
Respondents nevertheless assert that under N.C. Gen. Stat.
§ 160A-393, Morningstar was required to name East Oaks as a
respondent. See N.C. Gen. Stat. § 160A-393(e) (2013) (“If the
petitioner is not the applicant before the decision-making board
whose decision is being appealed, the petitioner shall also name
that applicant as a respondent.”). However, the scope of N.C.
Gen. Stat. § 160A-393 is specifically limited to appeals in the
2
The trial court’s order issuing mandamus specifically explains
that “[t]his Order only directs that a hearing be conducted by
the Warren County Board of Adjustment but does not direct that
Board concerning the merits of the case.”
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nature of certiorari from decision-making boards to superior
courts and, thus, does not apply to the present action for
mandamus. N.C. Gen. Stat. § 160A-393(a) (“This section applies
to appeals of quasi-judicial decision-making boards when that
appeal is to superior court and in the nature of certiorari . .
. .”). As such, we agree with the trial court’s conclusion that
“the Warren County Zoning Board of Adjustment and East Oaks, LLC
are not necessary parties to this mandamus action. The parties
sought to be compelled to take action in this mandamus action
are the Respondents.”
Finally, Respondents argue that the trial court improperly
denied their motion to dismiss because Morningstar only sought
mandamus in an attempt to take an untimely appeal of the
substance of the 21 April Determination. Respondents correctly
state that “[a]n action for mandamus may not be used as a
substitute for an appeal. This extraordinary remedy is not a
proper instrument to review or reverse an administrative board
which has taken final action on a matter within its
jurisdiction.” Snow v. N.C. Bd. of Architecture, 273 N.C. 559,
570, 160 S.E.2d 719, 727 (1968) (citations, quotation marks, and
italics omitted).
However, as previously discussed, the 16 November
Determination — unlike the 21 April Determination — specifically
addresses the Drive, and was, in fact, a formal determination
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concerning the Drive. Once the 16 November Determination was
made, Morningstar attempted to bring a timely appeal to the BOA
but was prevented by Mr. Krulik from doing so. We therefore
cannot agree with Respondents’ argument that Morningstar’s
petition for mandamus was filed “for the sole purpose of getting
around the appeal deadline [for the 21 April Determination]
which had passed.” Accordingly, this argument is overruled.
Conclusion
For the reasons stated above, we affirm the trial court’s
order issuing a writ of mandamus compelling Respondents to place
Morningstar’s appeal on the BOA’s agenda. Because we hold that
the trial court properly issued the writ of mandamus, we also
affirm the trial court’s denial of Respondents’ motion for
attorneys’ fees.
AFFIRMED.
Judge McCULLOUGH concurs.
Judge ELMORE dissents by separate opinion.
NO. COA13-458
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
MORNINGSTAR MARINAS/EATON FERRY,
LLC,
Petitioner,
v. Warren County
No. 12 CVS 180
-17-
WARREN COUNTY, NORTH CAROLINA and
KEN KRULIK, WARREN COUNTY PLANNING
AND ZONING ADMINISTRATOR, IN HIS
OFFICIAL CAPACITY,
Respondents.
ELMORE, Judge, dissenting.
I respectfully disagree with the majority’s conclusion that
Mr. Krulik had a statutory duty to transmit the appeal to the
Board of Adjustment (BOA) pursuant to N.C. Gen. Stat. § 153A-
345. As a result, I would reverse the trial court’s order
granting petitioner’s writ of mandamus. I concur in all other
aspects of the majority opinion.
The majority is correct in that N.C. Gen. Stat. § 153A-345
mandates that any person aggrieved by a zoning decision shall be
afforded a statutory right of review before the BOA. This Court
has defined a “person aggrieved” as “one adversely affected in
respect of legal rights, or suffering from an infringement or
denial of legal rights.” Cnty. of Johnston v. City of Wilson,
136 N.C. App. 775, 779, 525 S.E.2d 826, 829 (2000) (citations
and quotations omitted). “It is well settled that an appeal may
only be taken by an aggrieved real party in interest.” Id.While the majority argues that Smith v. Forsyth County Bd.
of Adjustment is inapposite to the outcome of the instant case,
I disagree. 186 N.C. App. 651, 652 S.E.2d 355 (2007). In
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Smith, we specifically looked to whether the petitioner had
standing to appeal a zoning determination from the Zoning
Officer to the BOA. To establish standing to appeal, this Court
required that an aggrieved party “show either some interest in
the property affected,” or, if plaintiffs are adjoining property
owners, “they must present evidence of a reduction in their
property values. Mere proximity to the site of the zoning
action at issue is insufficient to establish ‘special damages.’”
Id. at 654, 652 S.E.2d at 358. We concluded that because the
petitioner’s application to the BOA for appeal of the Zoning
Officer’s decision failed to allege that the zoning decision had
decreased the value of the petitioner’s property or would do so
in the future, the petitioner “failed to allege, or show,
special damages; therefore, she did not have standing to appeal
from the Zoning Officer to the [BOA].” Id. at 654-55, 652
S.E.2d at 358.
I read Smith as suggesting that the Zoning Officer is
vested with authority to refuse to transmit an appeal to the BOA
if the appealing party’s application is devoid of any
allegations of special damages, namely a decrease in property
value. Without alleging special damages in an application for
appeal, the appealing party cannot demonstrate that it is
aggrieved, and therefore the Zoning Officer may unilaterally
dismiss the appeal for want of standing. Simply put, to fall
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under the purview of N.C. Gen. Stat. § 153A-345, Morningstar
must have shown that it was aggrieved, which it could have done
by alleging special damages in its appeal of the 16 November
determination. However, Morningstar neglected to do so.
Without alleging special damages, Morningstar is not “aggrieved”
under N.C. Gen. Stat. § 153A-354, and it had no standing to
appeal. Thus, Mr. Krulik was not compelled to place
Morningstar’s appeal on the BOA’s agenda.
Further, without standing, Morningstar could not
demonstrate a “clear legal right” to petition for writ of
mandamus. Because Morningstar failed to satisfy the first
element of mandamus, the trial court erred in granting its
petition. Accordingly, the trial court’s order should be
reversed.